Introduction
People are justifiably concerned about the fees that they commit to spend or pay on bid protests for many reasons including weighing costs against the resources on hand and the contract award amount.
But you MUST act quickly after an adverse award decision because the deadlines for bid protests are extremely tight. And the longer you wait will affect attorneys’ fees as the tight bid protest deadlines often require them to prioritize protests over other work.
Fees in General
As a general matter, we ask for a $5,000 - $7,000 retainer because we know that for a basic protest, we can sometimes process the entire protest for that amount if it goes without complications.
This is much less than other firms charge, but we can do it because we are efficient and have kept our overhead down, and we have form books with most of the standard arguments prepared.
A Different Approach
It is possible to do the protest in stages and make fee commitments and payments as one goes along, such as the following:
INITIAL FILING FEE OF $2,000 INCLUDES:
Initial consultations/interviews, paperwork collection, and protest success analysis. This also allows us to determine how narrow the protest issues are, which will determine the amount of later fees; the more complex the protest, the closer the later fees will get to the $5,000.
LATER FEES:
If the protest goes forward, our estimate still is that you would need to spend the remaining $3,000 – 5,000 to process the protest, including the brief in response to the agency’s report. Anytime up until when the agency files its report – you can withdraw the protest and not incur the additional cost.
If the protest involves a document production request and we are reviewing documents, responding to that, and doing a complicated response to the agency report, we often have to ask for an additional retainer. If we do not spend that additional amount in full, we will refund that amount and any other retainers not expended.
Mechanics of Filing the Protest
WHY FILE THE PROTEST?
In addition to letting the agency know that you are not going to let them get away with actions that are adverse to your company, there are other reasons both elective and necessary for filing a protest.
Often, we have clients who essentially need to protest to save their business. As examples, you may be the incumbent contractor re-bidding at the end of the contract term whose business depends on that one contract, or you may be a business owner counting on award of a government contract to replace business you are losing in the private sector, or you may be a small 8a contractor relying on the 8a program to develop experience and get off the ground.
By our estimate, something like 20% of the award decisions are canceled shortly after a protest is filed. The agency’s lawyers look at the protest, evaluate it, and decide that they do not want to defend it because they could possibly lose. They direct the contracts personnel to cancel the award and start all over.
WHY DO AGENCIES CANCEL THE CONTRACT AWARD?
You ask why the agency lawyers would do such a thing – why not fight it out? They respond in this manner because under the GAO regulations if they lose, the agency pays all of the legal costs of the protester. This is one of the very few instances in dealing with the government where they are mandated to pay legal fees.
Therefore, if you are an agency lawyer and you read the initial protest and have your doubts about the process the agency’s contract administration personnel followed, direct a cancellation because it saves the agency money. Cancellation costs the agency virtually nothing compared to the potential legal fees involved in allowing a protest to continue. The agency can claim it is saving money.
Moving Forward
We are not saying the agency’s thought process with regard to how they handle bid protest matters makes any sense. We are just saying that years of experience shows this is what happens and why filing the initial protest – even if you later choose to withdraw it – makes a lot of sense.
There are very practical and cost-efficient methods for pursuing and managing a basic bid protest that can make your protest worth the expense.
Additional Resources about Bidding and Bid Protests: